Family Law

Colorado Passes Pro-Surrogacy Legislation

The new law-to-be makes it clear that the intended parents would have the protection of state law regardless of their genetic connection -- or lack thereof -- to their child.

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Colorado’s Gov. Jared Polis is poised, any day now, to sign into law new legislation passed by Colorado’s State Assembly codifying best practices when it comes to surrogacy.

A Major Victory

Colorado’s House and Senate Committees heard emotional and compelling testimony over the past few months, in favor of the passage of surrogacy-supportive legislation. One witness testified to turning to surrogacy to have a child after ten (10!) failed adoptions. She explained that the reality of surrogacy is not the stories of celebrities hoping to preserve their figures but those of regular people who very much want to be parents. (And, by the way, please don’t tell people struggling to have children to “just adopt”!)

Judith Hoechst, a Colorado assisted reproductive technology attorney, was part of the team leading the effort to pass the new law. She testified as to her own story — she almost died in the delivery room with her first child, but knew that her family was not yet complete. She described turning to surrogacy in California, knowing that California law would protect both the surrogate and her family. “Loving families are formed in many ways, among them, surrogacy. Because of my son’s birth it was important to me to work to codify best practices and balanced protections for Colorado parents and surrogates. Denver undoubtedly has some of the best fertility clinics in the country. Now intended parents and surrogates under the care of Colorado fertility clinics can feel safer knowing they are legally protected here”.

What Does It Do? 

In one sense, the new law will change very little. Most fertility clinics already require that surrogates meet certain important requirements. But the bill now puts some of those requirements into state law. These include for a surrogate to:

  • be 21 years old or older;
  • have previously given birth to a child;
  • undergo a medical evaluation and mental health counseling; and
  • have independent legal counsel of her choosing, licensed in the state, throughout the arrangement.

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So nothing crazy onerous. And intended parents have their own basic requirements, which also include being over 21 years of age or older, undergoing a medical evaluation, and having independent legal counsel of their choosing by an attorney licensed in Colorado through the arrangement.

What It (Importantly) Does Not Include

Colorado’s surrogacy bill does not require that intended parent(s) be married, straight, or genetically related to their child. The bill recognizes that families take many forms, and provides helpful and broad protections. By contrast, some states require intended parents to be married in order to receive parental recognition under state law.

Additionally, the law recognizes that some Coloradans may grow their families with the help of donated sperm, eggs, or embryos. The new law-to-be makes it clear that the intended parents would have the protection of state law regardless of their genetic connection — or lack thereof — to their child. This is especially important in light of the horrific legal situations other parents have faced.

For example, Jay Timmons and Rick Olson went through surrogacy in Wisconsin, and were shocked when their case — which everyone believed to be a routine determination of parentage in a surrogacy arrangement — was assigned to a judge with views hostile to the process. The judge declared that their son, Jacob, was actually a legal orphan. Only after a nightmare of a year, when the judge stepped down to run for office, was their case reassigned and their parental rights swiftly recognized by Wisconsin law. Thanks to Colorado’s new law, a judge with anti-LGBTQ+ views, or other idiosyncratic ideas of who should be permitted to be a family, would not be left to their own devices to make similar extreme and harmful rulings.

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Genetic (Traditional) Surrogacy

A vast majority of surrogacy arrangements in the United States and in Colorado occur in the form of “gestational” surrogacy, where the surrogate has no genetic link to the child. By contrast, “genetic surrogacy,” also known as “traditional surrogacy,” is where the surrogate is also genetically related to the child she is carrying and is, in a sense, both an egg donor and a surrogate simultaneously. Despite genetic surrogacy being relative rare, Colorado’s surrogacy bill addresses traditional surrogacy on equal footing as gestational surrogacy, putting in place parallel legal safeguards and procedures for both types.

No Out-Of-State Attorneys

Colorado assisted reproductive technology attorneys, as well as out-of-state attorneys in the field, should take particular note of the sections applying to attorney representation and parentage orders. Sorry, attorneys licenses in other states, but the bill provides that both the surrogate and the intended parents must have Colorado legal representation throughout the arrangement. Under current practices, frequently attorneys — including, at times, non-Colorado-licensed attorneys — only provide representation in the contract phase before the pregnancy and for the parentage legal phase after the pregnancy. Now, Colorado attorneys will need to be clear that their representation is for the length of the surrogacy arrangements.

Further, in a surrogacy arrangement, the parties must generally obtain a court order determining parentage to override the legal presumption that the person giving birth is the parent of the child. Previously, such a court order could have been obtained in another state and provided to a Colorado hospital and Colorado vital records directly. The new legislation requires that an out-of-state parentage order would need to be registered (aka domesticated) in a Colorado court first. Thus, the new law makes it financially and logistically less desirable to obtain a parentage order in a state other than Colorado.

Once Polis signs this bill, a huge congrats will be owed to bill sponsors Rep. Meg Froelich and Sen. Joann Ginal, as well as Colorado for its recognition of the exponentially increasing use of surrogacy in modern family building and for passing laws supportive and protective of surrogates, intended parents, and the children alike.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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